Pakhi Chamaria - firstname.lastname@example.org
One is aware that legal justice systems universally need reform when it comes to varied aspects of their delivery of justice. One of the major flaws in the legal justice system in India is the pendency of cases and therefore the delay or omission in providing justice to those who seek it. There have been various debates on how to resolve this contentious issue. This paper contributes to the discussion of resolution of pendency and is based on an extensive study of various journal articles, government websites, policy documents, columns in newspapers and press releases discussing the same. In a nation like India with a population of about 1.42 billion people as of 2022 ( The World Bank, 2022 ) naturally the number of grievances are also high. It is essential thus, that we use size of our population as an asset and employ more of our population to fix integral issues within our justice system such as pendency rather than allowing it to remain a liability as it acts as a burden to the pre-existing resources in the economy and leads to inefficient allocation of these resources.
The Constitution of India sets out fundamental rights of the citizens that are to be upheld. One of the postulated fundamental principles is the right to life. The right has various facets including that of access to justice. In theory, the right of the citizens of India to access to justice might be laid out in the supreme rule of law for the nation. However, in practice due to various causes this crucial and fundamental right of the citizens is constantly violated. One of these reasons being the pendency of cases in the justice system in India. Pendency might appear to some as “ just” a delay in the provision of justice. A fair trial in the Indian justice system is not simply one that has an independent unbiased Judge/ Jury. A fair trial is one that is one that is prompt/ speedy. (“Home/District Court in India | Official Website of District Court of India”) Not only is this statement derived from Article 21 of the Indian Constitution but also, neglecting this defining feature prohibits the trial from being fair from the get go. Therefore although delayed justice might not seem like a concern, delayed justice in fact cannot be termed as fair and therefore is not justice at all.
The Indian system is upheld by three organs - the executive, the legislative and the independent body- the judiciary. All organs are strongly interdependent and therefore a flaw in one organ inevitably negatively impacts all other organs of the Indian system and therefore reduces the efficiency of the entire system in itself. Therefore, no flaw in this system should go overlooked, especially a flaw in the judiciary this large. The overwhelming figures of pending cases in India in itself showcase how large and ever growing the concern is in reality. As of October 2020 the number of pending cases in all
levels of Indians courts had exceeded 34 million ( (“Vital Stats”) and although one might state that according to the Indian Constitution even a case that is a day old is considered pending, it must be noted that a substantial percentage of these cases have been pending for over ten, twenty and even thirty years. It is imperative to understand why, regardless of the Indian judiciary system being decentralized with courts on three different levels, is pendency and therefore accessibility to justice and a prompt trial a major challenge encountered by the judicial system in India.
This paper aims to investigate the pendency of cases in the Indian justice system based on the causes behind the same, specifically institutional and structural causes that could potentially be fixed using policy. It aims to discuss the impact of this pendency on the different stakeholders involved and emphasize on why there is a need for immediate redressal of this pendency and how this action can be taken. There are various questions that we look into to provide/deliver a strong multidimensional understanding of the issue. What contributes to the pendency of cases in India? How have other democratic nations with population sizes similar to that of India and low pendency rates dealt with pendency? Are those reforms feasible in a country like India? Has India taken measures in the past to resolve pendency? If so, have they been effective? Why not?
The paper is based strongly on close reading of various credible documents that provide details regarding the pendency of cases in India and the state of the Indian Justice System. We also look into the websites of various governments, particularly but not limited to the Indian government to get an idea of the statistics and figures regarding the same.
Resources Allocated to the Indian Justice System
To truly understand what creates and contributes to the pendency of cases in the Indian justice system, it is pertinent for one to look into how the judicial system in India truly works and whether pendency is a result of a lack of resources or inefficient usage of those resources or both.
Table 1 : The Difference between Sanctioned and Working Judges in Indian High Courts
Source : cited in references
The Department of Justice in India stated that they would increase judicial manpower to combat the delayed number of cases in the Judiciary. One of the solutions they chose to implement for the same was an increase in the number of sanctioned judges. (“Judicial Manpower | Department of Justice | India”) However, delays still continue to persist due to this change being ineffective. Why is the change ineffective? Even if the number of sanctioned judges is being increased, if there cannot be a simultaneous change or a filling up of vacancies for judges then increasing the number of sanctioned judges would have no effect on pendency. According to the data presented in the table, as of 1st March 2023, the total number of vacancies in the Indian high courts is 333. Implying that the number of judges is 333 lower than the recommended/ ideal amount that should be present. (“Appointment of Judges in Supreme Court”) Filling up of these vacancies would exponentially increase the rate at which cases would be resolved. There is a direct positive correlation between the number of vacancies and the number of pending cases a court has. For instance, the Allahabad Court has the highest number of vacancies being 57, ( (Vital Stats, n.d.) therefore, regardless of the fact that it has the highest number of judges, it is the high court with the largest number of pending cases in India. In Spite of having the highest number of judges.
Therefore, even though low judicial manpower does play a role in contributing to pendency of cases, it is not directly about the total number of judges rather the total number of vacancies in the court.
LATE FILING OF THE CHARGE SHEET
According to the working of the legal system in India, in the absence of a charge sheet a criminal case cannot move to trial. Therefore the absence of a charge sheet would naturally delay trial and cause pendency. The charge sheets often however, are filed late. A primary reason for the same would be the Code of Criminal Procedure, 1973 laid out by the constitution of India which states no specific time limit for the completion of investigation in a criminal matter excluding only certain exceptional cases. (Constitution of India, Legislative Department, India)
Why is pendancy a problem that needs to be addressed?
Pendency is not simply a cause of frustration, the impact of pendency is huge and not limited strictly to the judiciary. Pendency in effect, violates not only the fundamental right of receiving a speedy trial as laid out by the constitution but also impacts and violates other basic human rights laid out by the constitution. The impact of pendency expands far beyond just the legal system. The following PESTEL analysis explores the impact of pendency on different sectors and stakeholders in a society.
Political impact of pendency
Pendency of cases reduces trust in the legal system that is said to be built for the citizens in a democratic nation. When this system fails the citizens and their grievances are not addressed, not only does it create frustration in the minds of the citizens but it also reduces trust in the legal system of the nation. Since, political parties form the visible part of the government of a nation, political parties, especially the ruling party at the time is strongly blamed for the same. This also leads to a lack of trust in the functioning of the government and law in the nation. It discourages the citizens from actively participating in the democratic process as they believe that they are not in fact getting the rights the democratic nation should be offering to its citizens. This could further impact other spheres of the political state of a nation, for instance reduction in the number of active voters as citizens are not enthusiastic about their government due to constant ineffectiveness.
Economic impact of pendency
Pendency deeply hurts the economic prowess of a nation. There are various factors that contribute to the same. As India tries to protect its startups and small or medium growing businesses through acts such as StartUpIndia, ( (“Homepage”) Make in India, MUDRA Scheme, CGS, all such efforts of the nation go to vain when cases that are raised from or against these small or medium businesses with limited resources are delayed. Small firms do not necessarily have the resources to fight long drawn legal battles. ( White, Michelle J.Therefore, it drains the firm of its resources. Even if the matter is ultimately resolved by the court, the firm could potentially not be left with enough money in hand to be able to further sustain the activities of the firm efficiently. This could lead to a decrease in performance of the firm and eventually bankruptcy forcing these small businesses that require promotion out of the industry and feeding into monopoly power. Therefore, pendency harms both consumers and producers.
A considerable proportion of our economy is built upon Foreign Direct Investment ( FDI ) or through foreign trade. The government of India has taken various measures to invite and encourage such investment in the nation, which can sometimes come at the expense of violation of labor in India by making labor rights flexible or the creation of Special Economic Zones ( SEZs ). However, pendency opposes these efforts as an inefficient legal
system makes investment in the nation unattractive to foreign investors as it leads them to perceive higher risks.
There are various other forms through which pendency interferes and retards the economic growth of a nation and puts to waste the efforts taken up by the nation to encourage economic growth and an increased Gross Domestic Product ( GDP ).
Social impact of pendency
A backlog of court cases implies a backlog of justice which therefore equates to the existence of injustice. A delay in providing justice allows discrimination, marginalization, human rights violations and inequality in a community. It leads to stress and family disputes. Legal aid services and pro bono cases are positive initiatives taken up by firms that help improve the quality of justice served in a nation by making it accessible to more than simply the privileged few. Such initiatives are needed especially when it comes to a country like India with most of its population. However, pendency creates a burden on these legal aid services as the pro bono cases they fight might get drawn out and use a larger amount of their resources than expected or wanted. This might discourage firms from allocating resources to their legal aid services which would in turn create an obstruction to provision of justice to many, specifically in a nation like India.
Ethical concerns regarding pendency
There are several ethical concerns regarding pendency. Not only does pendency simply allow unethical practices to continue taking place for a prolonged period of time but also allows unethical actions to have no negative consequences. Apart from the fact that pendency in several forms elaborated on later, strips citizens off of their basic human rights, it also creates an Environment where unethical activities are not actively and effectively discouraged through the legal system which creates a breeding ground for the same. Pendency leads to stress among individuals which could easily translate into faltering relationships and broken families. This frustration and stress could manifest itself in different ways including the common unethical practice of using violence. One might feel forced to involve themselves in unethical activities due to the monetary drainage caused by pendency to combat the same. Pendency does not allow for a “ fair “ trial as a delayed trial is a trial that can easily not be fair due to the disadvantages caused to certain parties due to the delay and therefore taking away from their right to have a fair opportunity to put forth their take on events.
Legal impact of pendency
High pendency causes a strain on the legal system of a country which leads to the formation of an inefficient legal system. Pendency creates room for the violation of various laws and rights stipulated for the citizens in the constitution. For instance, evidence might be eroded or degraded as the trial is postponed for a long period of time. The credibility of the evidence might reduce over time impacting the quality of justice served. Long-draw trials might also endanger the lives of the witnesses involved in the trial violating the right laid in the Indian constitution right to life and personal liberty. If one is imprisoned during the course of a trial that is drawn out they are also possibly stripped off their voting rights. A fair trial is also denied in case of pendency as a fair trial entails timely disposal.
Technological and pendency
The relationship between technology and pendency is mutli- faceted. On one hand, technology is one of the probable causes of pendency as technology has created a large amount of awareness when it comes to a citizen’s rights and also to a large extent has allowed the judicial system to seem more accessible to the common man. We must note however, that this change caused by pendency, although contributes to pendency, is to a large extent a positive change as it is considered essential to have an educated and aware population that can make informed decisions.
On the other hand, technology can in fact be a solution to the problem of pendency. Machine learning and natural language processing can in fact find commonalities between pending cases, this could lead to a faster disposal of cases as they could then be addressed at similar timings making the process more efficient. Currently there is a law of use of technology present in the Indian legal system. This technology could be developed to provide a solution to pendency. There have been steps taken by the Indian government in the past, some of which are still being implemented in the judicial system with the use of advanced technology. An example of one of these steps would be that of the e-Courts (Setlur and Prakash) or e-Judiciary projects taken up by the Indian government to make judicial resources accessible and reduce pendency by making case disposal more rapid. ( (Verma, 2021 )
POSSIBLE SOLUTIONS TO PENDENCY OF CASES IN INDIA :
There have been several solutions pertaining to pendency that have been proposed in the past and several that continue to be proposed, some more feasible than others.
Addressing the problem of number of judges :
It is well known that a major contributor to pendency in the Indian judiciary is due to the lack of judges that are currently sitting and therefore the large number of vacancies are different from the recommended number to the actual number. Every alternate report and suggestion suggests a prompt filling up of vacancies for judges in order to carry out a swift
disposal of cases to reduce pendency. Becoming a judge is a long process, and a minimum of a decade of experience in a judicial office. It is also a process that demands various qualifications alongside passing state judiciary examinations and years of experience. Even though this is a long-drawn and demanding process, it is essential at the same time that the judges that deliver justice to the citizens are in fact qualified enough to do so. However, as it is a tiresome process it is crucial to have incentive to allocate effort into becoming qualified to be a judge. An underlying cause for the lack in the number of judges is the lack of incentive that the labor force has to go through the long drawn process that allows one to become a judge in the Indian judiciary. Incentive for most jobs commonly comes from salary, pension and other benefits provided. Becoming a judge is no exception. The position of a judge might not be attractive enough for the working force when weighing it against the amount of work required for the same. Therefore, by allocation of more resources and funds towards the salaries, pensions and benefits for judges and therefore increasing the same, there can be an increase in incentive and therefore a swift flow of judges to fill up vacancies.
Adoption of Alternative Dispute Resolution
Alternative Dispute Resolution is the resolution of conflict or disputes without a trial taking place. ( (Shonk, 2019 )There are various methods used to carry out the same including mediation, arbitration and neutral evaluation. Being less formal these methods naturally are less stressful than court proceedings for the parties involved. ADRs are positive because they not only allow the parties involved to save money, therefore creating a positive impact on the economic front ,but also generate long-lasting creative solutions to the problems causing better conflict resolutions and improved relationships between the parties involved in comparison to cases that go to trial. They take the burden off trial courts by providing an alternative and effective method to conflict resolution and therefore should be encouraged. . However, it is important to keep in mind that not all matters can possibly be resolved by ADR, sometimes it is essential for matters to be tried in court as it could otherwise lead to a miscarriage of justice. The same can be done by following CPC Section 89 (“India Code: Section Details”) where appropriate cases can be resolved amicably through alternative dispute resolution. It is therefore important for the government to introduce these methods that citizens might not be familiar with and educate citizens on the same through the various government websites present. Awareness of the existence of alternatives could reduce reliance and therefore burden on the judiciary in terms of pendency of cases.
CONCLUSION AND DISCUSSION
In conclusion, the issue of pending cases in the judicial system is a major and multidimensional issue that demands immediate attention and comprehensive remedies. The vast backlog of cases, delays in court processes, and the subsequent denial of justice to countless persons all pose substantial challenges to the legal system's general efficacy and credibility and therefore delivery of justice to the citizens. After having studied the core reasons of pendency throughout this work, including insufficient resources, procedural difficulties, and system inefficiencies. We have also investigated the negative effects of pending litigation on numerous parties, including litigants, victims, and society at large. Furthermore, we explored the potential effects of protracted delays, such as hampered access to justice, increased expenses, and a loss of public faith in the judiciary.
A diversified strategy is required to solve the issue of pendency. This includes strengthening the judiciary's capacity and infrastructure, investing in technology to simplify processes and case management, and establishing alternative conflict resolution options. Furthermore, legal reforms to streamline procedures and lessen the strain on the courts might aid in the expediting of cases.
Furthermore, increasing collaboration among parties such as judges, attorneys, law enforcement agencies, and administrative authorities is critical to establishing a more efficient and responsive judicial system. Collaboration and data exchange among legal system components can aid in detecting bottlenecks and adopting evidence-based remedies.
Public awareness and education efforts can also help to manage public expectations, encourage collaboration with the legal process, and reduce frivolous litigation.
Policymakers, legal professionals, and the entirety of the justice community must collaborate to establish and implement a comprehensive plan of action. Mechanisms for monitoring and evaluating the performance of these measures, as well as making appropriate modifications over time, should be created.
To summarize, resolving the issue of pending cases in the judicial system is a matter of fundamental rights and community well-being as well as administrative efficiency. We may aim for a more equitable, accessible, and efficient judicial system that supports the ideals of justice, equality, and the rule of law for all people by taking proactive actions to solve this issue. Only through concentrated efforts and long-term commitment can we develop a legal justice system that works for everyone.
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